Sunday, 2 October 2016

Who exactly will ‘take back control’? Parliament vs executive after Brexit and the ‘Great Repeal Bill’

Steve Peers

A key issue in the Brexit
referendum campaign was the case for British democracy: that rules applying to
the UK should be adopted by the UK parliament (or, as the case may be, devolved
bodies and local governments; I’ll come back to devolution issues in a later
blog post). But since the referendum result, it’s striking that many on the
Leave side seem reluctant to give Parliament much of a role in practice. Having
made a strong case for Parliament to make decisions affecting the British
people, they suddenly find this argument less compelling when contemplating that
Parliament might make decisions that they may not agree with. A bit like St. Augustine,
they pray for the virtues of parliamentary sovereignty – but not yet.

While a lot of debate has
focussed on whether Parliament should have a role in triggering Article
50 (the clause on the process of UK withdrawal from the EU), that’s
actually one of four related issues: Who should trigger Article 50? Who should
determine the form of Brexit? How accountable should the Brexit negotiations
be? And who should control what happens after Brexit? I’ll discuss each of these issues in turn, including
a broader analysis of the ‘Great Repeal Bill’ just announced by the government
as part of the fourth point.

1 Who should trigger Article 50?

As many readers will know, there
are pending court cases on this issue. It’s clear that the referendum itself is
not legally binding, since unlike previous cases like the 2011
referendum on voting rules, the European
UnionReferendum Act 2015 does
not specify what happens in the event of a vote to Leave. The government made a political promise to
implement the result, but that is not a legal obligation.

The core legal argument is
whether the official notification that the UK will withdraw from the EU is governed
by the ‘Royal Prerogative’, which gives the UK executive the power to negotiate
treaties and conduct foreign relations, or subject to Parliamentary approval,
since Brexit will inevitably impact upon the European
Communities Act (which is the main law giving effect to EU law in the
UK) and other UK statutes. You can find the skeleton arguments tabled by both
sides here;
and see Mark
Elliot’s analysis of the government’s pleadings.

Whatever view the courts finally
take of the law, there’s an overwhelming political
argument that Parliament ought to decide, given the huge impact upon the laws of
the United Kingdom. If it comes to this, I don’t expect many MPs would actually
vote to block Brexit, since the majority of UK constituencies voted to Leave,
and they will be concerned about their re-election chances. Moreover, many of
them likely believe it would be politically illegitimate not to respect the
result of the referendum. Frankly, it’s unfortunate that many Remain supporters
are unwilling to accept this political reality, and expend their energy on
overturning the result, rather than engaging in a constructive debate about the
least bad form of Brexit. Time to face facts: Bobby Ewing will not be back from the dead in your shower
tomorrow morning.

So the more significant impact of
any parliamentary vote on Brexit would be its potential impact on the next
issue: who should decide what form of Brexit to take?

2 Who should determine the form of Brexit?

A majority of votes were cast to
‘Leave’ the EU. No other question was on the ballot paper. Various arguments
were made in favour of Leaving the EU, some of them contradictory (ie from
opposite sides of the political spectrum). It’s sometimes asserted that the
Leave vote is a mandate to reduce immigration from the EU and to withdraw from
the free movement of people to this end, but at least some senior Brexiteers used to argue
that it is not a mandate to this effect.

So while the vote is a political
mandate to leave the EU, it’s not a mandate for any particular form of leaving
the EU. For instance, if the UK sought to leave the EU and retain membership in
the European Economic Area (EEA), in
order to keep full participation in the EU’s single market, at least on an
interim basis (as discussed
here) this would in no way
contradict the referendum result. EEA members like Norway are not
members of the EU, and do not participate in many aspects of EU law: fisheries,
taxation, trade with non-EU countries, agriculture, the single currency, and
many more.

Of course, some people object to
the idea of the UK staying in the EEA. But they need to base their arguments on
the perceived flaws of the EEA – and, if they are intellectually honest, on the
comparative perceived strengths of any other form of Brexit. The argument that
the British public ‘voted against staying in the single market’ is quite simply
false.

This brings us to the question of
who should make the final decision on
what form of Brexit to pursue: the UK parliament or the executive? (Not
forgetting, of course, that the EU side must also agree to the terms). The
question of whether to stay in the single market has a huge impact upon the UK
economy (see, for instance, the estimates of the Institute
of Fiscal Studies on this point: Brexit on the basis only of participating as a
WTO member would shrink the economy 4% as compared to staying in the single
market). Moreover, it will have a huge impact on British law. Refusing to let
parliament decide this issue is incompatible with its underlying role.

Of course, I would expect the
executive to draft a proposed motion for Parliament to approve. But if
Parliament is only willing to approve that motion subject to amendments, the
executive should consider itself politically bound by the amended motion. I’m not suggesting that Parliament should get
the power to agree every word in the text of future UK/EU treaties before
negotiations start, as if those treaties were Acts of Parliament. But it should
have the power to approve the main thrust of the government’s negotiating position.
If Parliament votes that the UK ought to negotiate to remain a full participant
in the single market, the government must consider itself bound by that result.
A clear statement of the government’s negotiation objectives, approved by
Parliament, would also supply a degree of legal certainty to those doing
business in or investing in the UK.

Some are concerned that
Parliament would be tying the government’s hands too much, since there is a
risk that some aspect of the government’s negotiating position will be
unattainable. In such a case, the government could come back to Parliament and
ask it to revise the motion, or failing that, to explain its inability to
achieve all those negotiation objectives when it comes time for Parliament to
approve post-Brexit treaties. And that point brings us neatly to the process of negotiating and approving those
treaties.

3 How accountable should the Brexit negotiations be?

Usually, it’s an executive power
to negotiate international treaties. Parliament is involved at the end, if it’s
necessary to amend an Act of Parliament, or adopt a new one, to give effect to
a treaty. Since 2010, it also has the ability in effect to block the government’s
ratification of a treaty, under the Constitutional
Reform and Governance Act 2010. The government has made clear its
unwillingness to be accountable during the negotiations, arguing that it will
not be giving a ‘running commentary’.

However, there are important
reasons why the Brexit talks should not be regarded as any ordinary treaty
negotiation. Firstly, as noted already, EU law has a huge effect on UK law; it
follows that Brexit will do also. Refusing to disclose any information to Parliament
in that process would be to divest it (and public opinion) of any effective
role in the debate about the negotiations.

In fact, there’s a relevant precedent
for a bigger role for Parliament. Due to the important role of EU law in UK law,
the House
of Lords and House
of Commons already have Scrutiny Committees examining the government’s
negotiation of draft EU laws. In particular, the government reports back
regularly to the latter committee on how negotiations over important EU laws
are going. One might almost call it a ‘running commentary’.

Secondly, there’s a particular
well-known feature of the Brexit negotiation process: the two-year deadline
that applies once Article 50 is triggered. This means that Parliament does not
face the ordinary choice between approving a treaty or the status quo; rather
the choice will be between leaving the EU on the Brexit terms negotiated by the
government and leaving the EU without any terms at all, which will also cause
major transitional problems. For instance, would the UK have to release from
prison, or refrain from arresting, fugitives who were the subject of a European
Arrest Warrant issued by an EU Member State on Brexit Day?

Thirdly, there is no reason for
secrecy on ‘negotiation tactics’ grounds once a text has been tabled to the
other side. In effect, those cards are on the table already. On the other hand,
it would damage the UK’s negotiation position to release notes which give the
government’s fallback position: those cards are still face down. There will,
inevitably, be some embarrassment if the UK government doesn’t obtain its
initial negotiation position. But this is normal in any treaty negotiation, and
the government simply has to prepare public opinion for this.

Fourthly, it would be odd if the
UK parliament had any less a role than the European Parliament, which not only
(like the UK Parliament) has to approve any final Brexit deal, but must be ‘immediately
and fully informed at all stages of the procedure’ (Article
218 TFEU). As a recent
post on this blog pointed out, there is EU case law clarifying these
rights, as well as a ‘closed door’ procedure for MEPs to review texts.

4Who
should control what happens after Brexit?

This issue has come to the fore
with the government’s announcement
of a ‘Great Repeal Bill’, to replace the European
Communities Act. First of all, some general points about this Bill. It won’t
take effect until Brexit Day, so the UK will still be in compliance with its EU
law obligations beforehand. An
interesting point is how the Act will deal with any EU laws adopted after it
obtains Royal Assent, but before Brexit Day: logically, it should at least
cover those which fall due for the UK to apply in the meantime. (My thanks to
Graham Smith for raising this point).

Secondly, despite the title, the
Act won’t actually repeal any substantive
EU law, but just the opposite: it will keep all pre-Brexit EU law in force in
the UK. But it’s not therefore a meaningless gesture, as some have suggested,
as it will do several things: a) prevent post-Brexit EU law from applying to
the UK; b) limit the legal effect of EU law in the UK’s legal systems (ie, EU
law would presumably no longer have primacy over all other national laws in
principle); and c) remove the role of the EU courts in interpreting that law.
This raises some key questions: would the UK want a legal mechanism for adapting
easily to post-Brexit EU laws that it wishes to apply? What would be the impact
of pre-Brexit, and post-Brexit, case law of the CJEU on interpreting this law?
How will the UK match the EU regulatory bodies referred to in EU legislation? Despite those questions, though, the plan for
the Bill does offer a great degree of legal certainty, as businesses and others
know that there will not suddenly be a legislative vacuum as regards a big
chunk of the law on intellectual property, data protection, environmental
protection, and so on.

Thirdly, there are two other
things that the ‘Great Repeal Act’ won’t do: a) it won’t affect EU laws that
form part of UK law due to other statutes (such as the Extradition
Act), although they will equally stay in force in much the same way as
the EU law preserved by the Repeal Act; and b) it won’t bind the European Union
(or, where relevant, non-EU states). Any EU law kept in force in UK form which
relates to trade with the EU, or other UK relations with the EU (recognition of
judgments, or return of asylum-seekers, for instance) will only have practical effect to the extent that the
UK and the EU have reached an agreement to this effect.

Fourthly – and this is my main
focus for now – the ‘Great Repeal Act’ will set out a process for repealing or
amending that EU law retained by that Act as and when the UK wishes to do so. The
key issue here is: will the government decide that, or Parliament? The
government’s announcement
makes clear that it wants Parliament to confer power upon it to make at least
some of the decisions on repealing EU law.

Let’s be clear what’s at stake
here. Acts of Parliament need to be approved by both the House of Commons and
the House of Lords, following a process of several readings where there is a
chance for public input and amendments. In comparison, ‘secondary legislation’ adopted
by government (usually in the form of ‘Statutory Instruments’ or ‘Orders in
Council’) cannot usually be amended by Parliament, and there’s little time for
public discussion or parliamentary scrutiny that could influence amendments. Either
of the two Houses of Parliament could veto draft secondary legislation, but
this is rare.

Secondary legislation is used in
other fields, and it was very frequently used to give effect to EU law in the
UK. So what’s the problem using it for
repealing EU law? First of all, the very fact that secondary legislation was
used so much to put EU law into place was
a problem. It removed Parliament from having the role it would usually
have over the adoption of the substantive laws in question. That was indeed one
reason why Eurosceptics were critical of the EU for years. So using secondary
legislation to overturn or amend those EU laws doesn’t solve that problem: it
continues, even exacerbates it.
Remember, as noted above, that the government’s negotiation of EU laws was
always scrutinised by Parliament; this ameliorated the impact of the big
transfer of power to the executive. But in principle, there would be no such mechanism
to ameliorate the executive power to repeal EU laws after Brexit – unless a new
form of parliamentary control of secondary legislation, involving some form of effective
scrutiny and amendment, were developed.

Some might argue that the EU
origin of these laws is inherently tainted, and so therefore a fast-track
procedure to repeal them is justified. That argument is based on a fatuous misunderstanding
of EU law propagated during the referendum campaign: that the UK is the passive
recipient of laws adopted by ‘unelected bureaucrats’. In fact, as I pointed out
in detail here,
EU laws are adopted by elected ministers of Member States and elected Members
of the European Parliament, and the UK government voted for them a huge
majority of the time.

Secondly, the government may well
seek the power not only to fast-track repeal of EU laws which apply in the form
of secondary legislation, but also those which are implemented by means of Acts of Parliament. Such powers are
known as ‘Henry VIII clauses’, and are particularly controversial because they effectively
overturn the role of parliament that led to the adoption of those Acts in the
first place. In my view, such clauses should be rejected for the post-Brexit
process as a matter of principle. If an EU law issue was deemed important enough
while the UK was a member to enshrine in an Act of Parliament, it should be for
Parliament to repeal or amend it.

On the other hand, it is probably
not feasible to entirely rule out the
use of secondary law-making to amend or repeal existing secondary legislation derived from EU membership. But Parliament
should not give the government a blank cheque, for the reasons explained above.
Rather, such powers should be subject to strict limits, either by means of a positive
list (‘secondary legislation is only allowed in the following areas’) or a negative
list (‘secondary legislation is allowed, except for the following areas’). In
either case, there should be a ‘carve out’ for laws on workers’ rights and the environment,
given their particular importance, as well as other issues where Parliament
usually plays the main role.

Conclusions

There’s no plausible argument
that we need to destroy parliamentary democracy in order to save it. The Leave
side argued for British parliamentary supremacy – not for ‘handing back control’
to our
‘unelected bureaucrats’. Parliamentary sovereignty doesn’t need fair-weather
friends: it needs supporters who will take the opportunity of Brexit to
strengthen it for reasons of principle, not undermine it for reasons of tactical
advantage.

20 comments:

Impact of this repeal act on decision-making by EU agencies is interesting. Does UK continue to accept decisions by European Chemicals Agency, European Medicines Agency, etc., until parallel agencies have been set up, which could take several years? (and will be a big waste of time and money). Won't it be necessary to set up UK versions of these agencies so they can start work on the day the UK exits the EU -- otherwise what would happen if, for example, a post-Brexit decision of the European Chems Agency, which the UK recognises in an interim period before a UK Chems Agency is set up, is challenged at the ECJ (which by now the UK would not be recognising as having jurisdiction)?

The government announcement talks about setting up parallel agencies. But there would have to be arrangements for mutual recognition of UK and EU agency decisions, or otherwise each agency will only have jurisdiction to rule on the UK or EU side and there will be extra public and private sector costs due to going through two agencies.

We have no way of knowing if Brexiters voted for soft, Brexit, hard Brexit, to better fund the NHS or for some other reason. If a Brexiter can't get soft Brexit, he may prefer to remain. If a hard Brexiter can't get hard Brexit he may prefer to remain and better fund the NHS. We don't know precisely what people sought with their leave vote.

Perhaps the best democratic expression of the referendum result is to remain and better fund the NHS?

Perhaps the EU will refuse to negotiate with our unelected, over-reaching Executive? Having received Article 50 (2) notification in March or sooner, they may decide our Article 50 (1) decision has not been made in accordance with our constitutional requirements: it seems illogical for a pre legislative advisory referendum result to stand without scrutiny from our legislature.

As a EU citizen, I hope the EU will consider any letter from the UK government as produced constitutionally--for doing otherwise would be a mere quibble and would not go down well with the UK public opinion; it would be a very bad foundation for continuing UK membership, which could only come out of a massive change of opinion in the UK, not from ignoring the British people's will. The EU, too, wants Britain out quickly and stable conditions restored, if possible with a compromise on trade and other issues benefiting both parties WITH RESPECT TO THE SITUATION THAT WOULD BE IN PLACE WWTIH NO SUCH AGREEMENT (not with respect to the pre-referendum situation, for that is no longer attainable: both the UK and the EU will be harmed by the decision).From your article, it is very obvious that the UK will have a serious constittutional crisis if Parliament is not involved in the Brexit decisions.Right now, Theresa May has no mandate from the British electorate to be PM or to negotiate anything (the Tory election platform included strentghening the EEA... if I'm not mistaken). A new election would be expedient, but it would worsen today's confusion.In view of the deep democratic traditions of the British people, a solution will certainly be found--eventually. Brexit, however, will make many things worse, not just in the economic field.What can be predicted with some confidence, even though nobody's doing so, is that imis going to contract.

Question: In respect to legal decisions made by the ECJ one that affects us is case C-299/05 that allows for disability and care allowances to be exportable within the EU. Do you anticipate that these type of rulings will be repealed once the UK "takes control" of EU laws?

The 'Great' Repeal Bill might address the status of CJEU case law, or it might not. If not, the courts will decide. I expect that they will logically find CJEU rulings highly persuasive in interpreting the relevant UK law.

It would be very surprising if the Great Repeal Bill does not address the CJEU case law. In fact unless the PM does not get her way she specifically mentioned dealing with the authority of CJEU case law in the Bill. The aim is to prevent legal vacuum but have the corpus of EU law taking effect and being interpreted by reference to UK law no longer EU law. So the Cabinet legal office will have its best legal minds working on it. My experience is that a lot of them are quite heavy weight and fine legal minds although there is more recognition of their expertise on the Continent that in the UK. Just another of the many paradoxes Brexit brings to light

A different interpretation of the law prejudices the idea of consistency. I understand May to be ruling out an obligation to follow CJEU rulings - finding them persuasive is another matter, and it would be odd to write into law that UK courts are obliged *not* to follow those rulings. Without adherence at least to prior CJEU case law there *will* be a legal vacuum, since many previously established legal points might be reopened as a consequence.

Indeed a different interpretation of the law prejudices the idea of consistency. One is tempted to say that it is in fact the aim of the exercise. As your title suggests it is all about attempting to take back control. We will just have to wait and see the details of the Bill to see how they manage this. Section 3 (1) of the ECA was a masterpiece in legal drafting- well a masterpiece for anoraks. Parliamentary draftsmen will find a way to craft a clause to instruct the judges according to the wishes of their new political masters. The CJEU case law is only interpreting the law. The UK is unique among the Member States for having case law as such a prominent source of law. In fact ,the UK was for a long time unique in having a provision specifically instructing its courts to follow the case law made in Lux. Interesting time ahead, disentangling 43 years of membership and dare we say belongingness will take time and create a few headaches.

The issue of whether to follow the CJEU case law is more relevant in areas which will be the subject of a mutual recognition agreement between the UK and EU. Probably a better case for case-law consistency in some areas than others. But this depends on the final agreement.

Not a lawyer but Tilou's point: would this also apply to S1 health cover for state pensioners residing in another EU member state? If so many UK pensioners in EU27 will be faced with loss of residence rights, high private insurance or returning to UK.

Steve your points are well made but miss the point that the UK government have said recently that they will set up an act to allow all the EU laws we have to live by now are a part of UK law and as such they can then be modified with parliaments consent. This I believe is to placate the unions who were worried that labour laws etc would be written off and that our rights as workers would be undermined.

I also disagree with your point that the remain side should fall in line and accept the decision. Referendums have never been legally binding and do require under our democratic laws that the whole of parliament ratfiy this. Now you make the point that MP's would vote to leave based on fear of being deselected. Well Labour MP's were in the main for remaining and it is these MP's who would be voting against the public. There are enough Tory dissenters to help labour Scotland and Ireland over turn May's view if they so wished. It would then require their local parties and activists to de select the MP and then up to that MP if he or she wanted to stand as an independent.

This deselection would in my opinon not happen as it would mean we would be left with political uncertainty.

Finally trade deals cannot be ratified until the two years are up anyway as I understand the EU rules and we cannot even trade with anyone else with the EU permission before then. We are going to be in limbo.

If we are to go with the EEA then we are going to have to join Schengen which would be totally against what the majority of Brexiters want

Thanks for your comments, Rob. I don't think Tories are usually very worried about placating unions, but for whatever reason, they claim they don't want to reduce employment law rights. However, there is a lot more to the EU 'acquis' than employment law issues. Some referendums are legally binding, but I agree this one wasn't. The reality is that very few MPs have said they would vote to Remain in light of the referendum result, and I think we have to deal with the world as it is, not as we might like it to be. This blog post isn't really about trade deals (except with the EU) and the EEA and Schengen are not in fact connected - they happen to have Norway and Iceland in common, but legally and politically, there's no requirement to join both. Switzerland is in Schengen, but not in the EEA.

Sorry to be commentating so late on this and forgive me if I'm wrong but it strikes me that this "Great Repeal Bill" looks like a bespoke instrument made in London allowing the UK to pick off the juiciest cherries in the tree. I can see that Brexiteers believe it to be a highly attrative tool but I doubt the EU will ever accept it. If this Bill goes ahead the UK will be blocked not only from membership of the EU but access to the single market. Even if it were to go ahead and incorporate the whole body of EU law into British legislation on the day after a deal has been struck - what about future laws? The EU is not static. Would the UK accept all new laws? Or pick and choose the laws it likes? Again the EU won't accept such behaviour.

But it will be up to the UK to decide which EU laws it wants to retain after Brexit, it won't need EU approval. Having said that, the UK's choices don't bind the EU, so just because the UK wants to (say) ensure continued mutual recognition of civil judgments that means nothing unless the EU agrees. Any ex-EU legislation that regulates cross-border issues will only have practical effect if the EU and the UK do a deal or otherwise arrange to ensure that it's still applicable.